Delhi High Court

Uttar Pradesh State Road ... vs Rakesh Tayal & Ors. on 28 November, 2008

Author: V.B.Gupta

*       HIGH COURT OF DELHI : NEW DELHI

1.MAC App. No. 459/2005 & CM No.8041/2005

%             Judgment reserved on:22nd October, 2008

              Judgment delivered on:28th November, 2008


Uttar Pradesh State Road Transport Corporation
(U.P.S.R.T.C.) through its
Regional Manager, Ghaziabad (U.P.)    ..Appellant

                     Through: Ms.Neha Goyal, Adv.

                               Versus

1.Rakesh Tayal
S/o Late Banarasi Dass
R/o 157 B, Maharana Pratap Enclave
Pitam Pura,
Delhi-110034.


2.Sh. Anil Kumar
S/o Sh.Karan Singh
R/o Village Kamherda,
P.S.Gangoh, District Saharanpur
(Driver of the bus)

3.Subhash Chand
S/o Late Banarasi Dass
R/o 2821/211, Vishram Nagar,
Tri Nagar, Delhi.
(Owner of the car)                      ...Respondents.

                     Through: Mr.K.S.Bawa, Adv.

2.MAC App. No. 465/2005 & CM No.8119/2005



MAC App.No.459 & 465 of 2005                        Page 1 of 15
 Uttar Pradesh State Road Transport Corporation
(U.P.S.R.T.C.) through its
Regional Manager, Ghaziabad (U.P.)    ..Appellant

                     Through: Ms.Neha Goyal, Adv.

                               Versus

1.Shobha Tayal
W/o Rakesh Tayal,
R/o 157 B, Maharana Pratap Enclave
Pitam Pura,
Delhi-110034.


2.Sh. Anil Kumar
S/o Sh.Karan Singh
R/o Village Kamherda,
P.S.Gangoh, District Saharanpur
(Driver of the bus)

3.Subhash Chand
S/o Late Banarasi Dass
R/o 2821/211, Vishram Nagar,
Tri Nagar, Delhi.
(Owner of the car)                      ...Respondents.

                     Through: Mr.K.S.Bawa, Adv.


Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Yes

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
   in the Digest?                                          Yes

MAC App.No.459 & 465 of 2005                        Page 2 of 15
 V.B.Gupta, J.

By this common judgment, I shall dispose of the

above two appeal filed by the U.P.State Transport

Corporation.

2. These two appeals have been filed under Section

173 of the Motor Vehicles Act, 1988 (for short as „Act‟)

against the impugned judgment dated 21st February,

2005 passed by the Tribunal vide which it disposed of

two petitions, one filed by Rakesh Tayal and the other

by Smt.Shobha Tayal, both injured.

3. Brief facts of this case are that the respondents

Rakesh Tayal and Smt.Sobha Tayal, husband and wife,

on 30th April, 2003 at about 1.15 p.m near Chapraula at

Ghaziabad (U.P.) met with an accident. Both of them

were travelling in Maruti car bearing No.DL-6C-4175

from Dadri to Delhi. It is alleged that respondent No.2,

Anil Kumar, came from the opposite side driving UP

Roadways Bus bearing No.UP-14G-3778 rashly,

negligently at a fast speed and hit their car. Due to the

impact, both the injured sustained grievous injuries.

4. The appellant is the registered owner of the bus

as well as employer of the respondent No.2, whereas

respondent No.3, Subhash Chander is the owner of the

car.

5. Vide impugned judgments, the Tribunal awarded

compensation of Rs. 1,59,300/- to injured Rakesh Tayal

and Rs.86,500/- to Smt.Shobha Tayal, along with

interest @ 6 % p.a. from the date of filing of the

petition till realization.

6. It has been contended by the learned counsel for

the appellant that the Tribunal erred in concluding

that the accident had taken place due to fault of the

bus driver, when not even one independent eye witness

has alleged that the accident occurred due to sole

negligence of bus driver. Further, the claimant had hit

the bus on the right side near the rear wheel and as

such the claimant is liable for contributory negligence.

7. Other contention is that the Tribunal was wrong

in awarding compensation of Rs.25,000/- towards loss

of amenities for a period of five months, since there is

no proof to substantiate the evidence, that he was bed

ridden for a period of eight months.

8. On the other hand, it is argued by learned counsel

for claimants that the accident took place due to rash

and negligent driving on the part of bus driver and site

plan clearly corroborate this fact also.

9. Negligence is nothing but a failure to observe

precaution and vigilance which the circumstances

justly demand, whereby such other person suffers

injury. Not only commission of an act but also an

omission to do something which a reasonable man

would do or is obligated to do amounts to negligence.

Therefore, negligence does not always mean absolute

carelessness, but also includes a failure to observe the

degree of care and precaution and vigilance duly

required under the circumstances which justly

warrant. Negligence is a relative and comparative

term. No rigid formula and no mathematical ratio

could be laid down as to what constitutes negligence

under particular circumstances of the accident, but to

determine what an act would amount or would not

amount to negligence, the test would be whether a

prudent and reasonable man would cause damage. In

other words, not only an act but also an omission to do

an act which the circumstances warrant from a

reasonable man‟s point of view and which the law

obliged would constitute negligence.

10. Contributory negligence has been explained by

the Apex Court in The Municipal Corporation of

Greater Bombay v. Shri Laxman Iyer and Anr., JT

2003 (8) SC 108, as under:

"To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute

negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other‟s negligence. Whichever party could have avoided the consequence of the other‟s negligence would be liable for the accident. If a person‟s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are

reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise."

11. In the present case, PW2 Rakesh Tayal testified,

that he was driving the car at a normal speed of 40-

45KMPH on the extreme left side of the road and the

UP Roadways bus came from the opposite side driven

at reckless speed and hit his car while overtaking a

local TSR. He testified that the bus hit him from little

behind the front portion tyres of its driver‟s side.

12. Anil Kumar as RW1, the driver of the bus in his

examination in chief stated that he was not rash and

negligent in causing the accident. It was the driver of

the maruti car who felt asleep while driving and came

on the wrong side of the road and dashed against the

bus, on the right rear side of the bus.

13. RW2 the conductor of the bus stated in his

testimony that the driver of the bus was not negligent

as he was driving carefully and at a slow speed on the

correct side of the road. He stated that it as the driver

of the maruti car who was at fault as something went

wrong with his steering or he felt asleep and thus

struck against the middle portion of the bus on the

right side.

14. Though the testimony of RW1 is corroborated by

the testimony of RW2 but both the driver and

conductor were not specific in their written statement,

as to the manner and circumstances in which the

accident occurred and for the first time, RW1, Anil

Kumar, driver of the bus came with the version that

driver of Maruti Van was at fault as he had gone to

sleep, while driving the car, which came on the wrong

side of the road and dashed against the bus on the

right rear side.

15. As per the site plan, it is clear that it was the bus

driver who was at fault and in the process of

overtaking caused the accident.

16. Thus, the contention of contributory negligence

by the appellant is rejected.

17. Regarding the excessive compensation on account

of pain and suffering and loss of amenities, in a

plethora of cases the Apex Court and various High

Courts have held that the emphasis of the courts in

personal injury and fatal accidents cases should be on

awarding substantial, just and fair damages and not

mere token amount. In cases of personal injuries and

fatal accidents, the general principle is that such sum

of compensation should be awarded which puts the

injured or the claimants in case of the fatal accidents

matter, in the same position as he would have been, if

accident had not taken place.

18. In examining the question of damages for

personal injury, it is axiomatic that pecuniary and non-

pecuniary heads of damages are required to be taken

in to account. In this regard the Supreme Court in

Divisional Controller, KSRTC v. Mahadeva Shetty,

AIR 2003 SC 4172, has classified pecuniary and non-

pecuniary damages and has held that:

"Compensation must be „just‟ and it cannot be a bonanza."

19. The Apex Court in R.O. Hattangadi v. Pest

Control (India) Pvt. Ltd.; (AIR 1995 SC 755) laying

the principles posited:

"Broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; (ii ) loss of earning of profit up to the date of trial;

(iii) other material loss. So far as non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

MAC App. No. 459/2005

20. PW2 has testified that he was bed ridden for a

period of about eight months. As per CT Scan /USG

report from Maharaje Agarsen Hospital, New Delhi,

claimant Rakesh Tayal sustained fracture of roof of

acetabulum and also fracture of right inferior pubic

ramus. There was also a small infra-articular fracture

fragment in the right hip joint with mild posterior pillar

of right acetabulum.

21. The Tribunal held on this point as under;

"Though there is no medical prescription to substantiate the said evidence, having regard to the nature of injuries, it could be safely said that petitioner could not have been able to walk, stand, move around freely for a period of about 3-4 months. The injuries to the acetabulum and pubic ramus must have rendered him incapable of enjoying essential amenities of life thereby depriving him of all the pleasures of life. I, therefore, award him a sum, of Rs.25,000/-

towards loss of amenities of life."

22. Thus, having regard to the nature of injuries, the

Tribunal rightly awarded compensation of Rs.50,000/-

on account of pain and suffering and Rs.25,000/- on

account of loss of amenities and I, do not find any

illegality or infirmity in the impugned judgment of the

Tribunal.

MAC App. No.465/2005

23. It is argued by learned counsel for appellant that

compensation of Rs.25,000/- on account of pain and

suffering awarded to the claimant is arbitrary and

excessive, as the claimant was bed ridden only for one